| The Tax Publishers2019 TaxPub(DT) 8008 (Kol-Trib) : (2019) 179 ITD 0791 : (2020) 204 TTJ 0487 INCOME TAX ACT, 1961
Section 254(2)
Failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on record which can be rectified under section 254(2), it may be an error of judgment. Thus, as there was no opportunity for the revenue to file its submissions along with the relevant evidence involving the legal ground before the CIT (A) or before the Tribunal, miscellaneous application filed by assessee was dismissed.
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Appeal (Tribunal) - Rectification under section 254(2) - Mistake apparent - Failure of Tribunal to consider an argument advanced by either party for arriving at a conclusion--Error of judgment
Assessee raised an additional ground before the Tribunal questioning the jurisdiction of Tax Recovery Officer (TRO) in completing the assessment whereas it was found that no such ground was raised before the CIT (A). However, said ground was remanded by the Tribunal to the CIT (A). Assessee contended that said ground was a pure legal ground requiring no fresh investigation of facts and as without affording it a reasonable opportunity of hearing the Tribunal had remanded the matter, same was bad in law. Held: The power of rectification under section 254(2) can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent on record and not a mistake that requires the availability of relevant material on record. The relief sought by assessee by questioning the jurisdiction of TRO in completing the assessment wherein it was found no such ground was raised before the CIT (A) was not a mistake which was apparent from the record. Further, failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on record, it may be an error of judgment. Thus, there was no opportunity for the revenue to file its submissions along with the relevant evidence involving the legal ground before the CIT(A) or before the Tribunal. Therefore, miscellaneous application filed by the assessee was dismissed.
Distinguished:United Commercial Bank v. CIT (1982) 137 ITR 434 (Kol.) : 1982 TaxPub(DT) 0729 (Cal-HC),Maharani Kanak Kumari Sahiba v. CIT (1955) 28 ITR 462 (Patna) : 1955 TaxPub(DT) 0031 (Pat-HC),Surinder Pal Verma v. Asstt. CIT (2004) 89 ITD 129 (Chd.) (TM) : 2004 TaxPub(DT) 1251 (Chd-Trib),Coca Cola India (P.) Ltd. v. ITAT (2007) 290 ITR 464 (Bom.) : 2007 TaxPub(DT) 0998 (Bom-HC),Tien Yuan India (P.) Ltd. v. CCE (2013) 32 taxmann.com 37 (Bom.)
REFERRED : M.G. Sahani & Co. v. Collector of C.Ex 1994 (73) ELT 3 (SC) : 1994 TaxPub(EX) 0783 (SC),ITO v. Vishu Impex (P.) Ltd. [IT Appeal No. 2765 Delhi of 2011, dated 31-12-2015],National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC) : 1998 TaxPub(DT) 0342 (SC), and Gedore Tools (P.) Ltd. v. CIT (1999) 238 ITR 268 (Delhi) : 1999 TaxPub(DT) 1189 (Del-HC)
FAVOUR : Against the assessee
A.Y. : 2012-13
IN THE ITAT, KOLKATA 'A' BENCH
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